Is Elena Kagan gay or straight?: Bloggers on the internet debate over the Supreme Court nominee

Win McNamee/Getty ImagesPresident Barack Obama, with Vice President Joe Biden, while introducing Solicitor General Elena Kagan as his choice to be the nation's 112th Supreme Court justice during an event in the East Room of the White House.
As President Obama stood in the East Room to name Solicitor General Elena Kagan as his nominee for the U.S. Supreme Court, bloggers were already online praising and deriding what they called the "first openly gay Supreme Court nominee."

One problem: The White House says Kagan isn’t gay.

Last month, Obama administration officials tried to squelch a "whispering campaign" among conservative bloggers who wrote that the single, never-married Kagan is a lesbian. When CBS News picked up one of the blogger’s posts on its website, a White House spokesman shot down the rumor as "false charges" and demanded the story be taken down.

The response angered both conservatives (who speculated the White House was covering up Kagan’s sexual orientation) and gay rights activists (who said the White House shouldn’t make being gay sound like a crime).

But the story swept across the internet again this week after Obama officially picked Kagen as his nominee. Kagan’s supporters said her critics were using outdated stereotypes to falsely label a successful, single woman. Conservative groups fueled the online frenzy by demanding Kagan be questioned about her sexual orientation during her confirmation hearings.

That left bloggers on both sides of the issue with a new set of questions. Do we have the right to ask a Supreme Court nominee if she’s gay? Would it matter if she were?
Joan Garry, blogging at Huffington Post:

The White House has, up to this point, done a significant disservice to Ms. Kagan and to the gay community with its reaction to the rumblings that Ms. Kagan is a member of my club — aka, a lesbian. I take that back. I’m being too kind. The White House has said things that qualify as homophobic . . .

As a gay rights activist and as a person who believes in employment non-discrimination, there is a wrong way and a right way to deal with the rumblings. The wrong way is to imply that homosexuality is something you are charged with. The right way is to say that Elena Kagan’s sexual orientiation, gay or straight, is irrelevant to her ability to be one of the finest Supreme Court picks of our time.

The White House may be hoping that Kagan’s sexual preference is a non issue for most Americans, especially at the moment when anti-gay-rights groups change their message from "we don’t want gay-friendly nominees" to "gay nominees are all sinful," as Focus on the Family has just done. Whether or not the strategy works politically, the White House’s announcement that Kagan isn’t gay should end the matter, unless and until someone come up with some real proof to the contrary.

The unfounded insistence that Kagan is a lesbian isn’t about lies or hypocrisy (shades of, oh, Larry Craig and John Edwards) or even journalistic ethics. It’s about making things up. There’s simply no evidence that Kagan’s pretending to be anything she’s not. The underlying lesson may be that the confirmation wars are so completely toxic that we have come to assume every nominee reflexively lies about everything, up to and including his or her sexuality.

During confirmation hearings Elena Kagan should be asked if she is a lesbian. But not for any reason other than to find out if she has a significant other. If she does, that information is germane to the procedure, just as it is when confirming a heterosexual. Kagan cannot allowed to be stealth in this regard. Her being a lesbian should not keep her from becoming a judge. But . . . a heterosexual’s spouse is fair game, a homosexual’s partner is too. I’m afraid that this issue is relevant and must be pursued.

Frankly, I think lesbian and gay equality activists should be campaigning for one of our own to become a justice of the Supreme Court. I don’t believe our equality will come from the legislative branch — the rewards for stigmatizing gays and forcing everyone into heterosexual lives are so high that religious and secular totalitarians always will do those things.

That means our equality is most likely to come from the judicial branch. And while I do see the foundation for our equality in the Constitution — everyone else is looking in the wrong spots, but it’s there, trust me — I think it’s going to take a lesbian or gay peer on the Supreme Court to have the credibility and stature to explain to the other justices how the Constitution and federal law apply to issues of equality for lesbians and gays. I do not believe they will be able to sort out the slurs from the truth otherwise.

Ultimately, it doesn’t matter whether Kagan is a lesbian or not . . . But there’s something unseemly about the White House issuing statements denying that someone is gay because it would be politically problematic. And there’s something equally uncomfortable about the fact that many successful women who are unmarried are automatically assumed to be lesbians. No matter how unseemly or uncomfortable, however, the rumors remain. It’s now the media’s turn to show how they can handle a story about a gay rumor. Ignoring it won’t make it go away, but parading the pink elephant around only makes it a circus. Nomination battles need not become toxic, and the nominee’s personal life need not be the most important — or even in the top 100 — issue to be discussed.

What do you think? Join the conversation and leave your comments below.